Creativity in the Courtroom

September 18, 1985

THE JUDGES in this town have to deal with a lot of imaginative litigants. There are always, of course, the people who file their own cases demanding that the FBI stop sending signals to their brains through the fillings in their teeth, or the prisoners who file multiple petitions demanding their freedom because the judge who sentenced them was left-handed. Every courthouse in the country has a few of those. But occasionally, serious people represented by real lawyers go to court with petitions and defenses that are so unusual one stands in awe of their ingenuity. Federal courts in this city dealt with two such cases last Friday.

Who, for example, would have thought of going to court to force members of Congress actually to speak the words that appear in the Congressional Record labeled as debate? Three congressmen, two attorneys and a law student did, and they were represented by the Mountain States Legal Foundation, a conservative public interest group. This is a truly radical idea, proposing that a judge control the way Congress does its business. There are a lot of things wrong with the way the Congressional Record is put together. Far too much taxpayers' money is spent printing tributes on the occasion of Balzonian Freedom Day or old George Constituent's retirement from the postal service. These fillers are, of course, not actually uttered, just dropped at the desk for printing, but at least inserts are now identified as such -- a great improvement over a few years ago. And sometimes the editing of a real debate can mislead, though usually the objective is to clarify syntax or tone down argument. But even when a member seeks to create a record that is at odds with the intent of his colleagues, it is clear that that is a matter for Congress -- not a court -- to police and correct. That's the way three U.S. Court of Appeals judges saw it. Judge Abner Mikva, who served in the House of Representatives himself, wrote the opinion, wisely ruling that congressional rules and procedures are the responsibility of the legislative branch alone.

In another courtroom on the same day, Judge Harold Greene of the U.S. District Court was dealing with an imaginative defense in a tax evasion case. John A. Shorter, a local attorney, is charged with failing to pay $287,600 in taxes, penalties and interest for the years 1972 through 1983. His defense is that he is a compulsive gambler and therefore had to spend his money making bets instead of paying taxes. Even conceding that compulsive gambling is a mental disorder, Judge Greene wanted to know what that had to do with failure to pay taxes. It may explain why there was no money left to pay the taxes -- though the prosecutor says it went for a Mercedes and gifts to a girlfriend -- but how does an obsessive desire to bet a bundle compel a citizen to violate the tax law, any more than an unusually bad memory or a proclivity to tardiness explain a fraud? Spending time on cases like this must make jurists -- even Judge Greene -- long for a straightforward and routine legal dispute, like the AT&T divestiture.